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United States v. Dominion Energy, Inc.

United States District Court, C.D. Illinois, Springfield Division

April 15, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DOMINION ENERGY, INC., BRAYTON POINT ENERGY, LLC, KINCAID GENERATION, LLC, and EQUIPOWER RESOURCES CORP. Defendants. CITY OF FALL RIVER, Proposed Plaintiff-Intervenor

OPINION

SUE E. MYERSCOUGH, District Judge.

After the Court entered a Consent Decree in this case, the City of Fall River, Massachusetts filed a Motion to Intervene (d/e 13 and revised as d/e 25), a Motion for a Temporary Restraining Order and/or a Preliminary Injunction (d/e 15), and a Motion to Enforce and/or Modify the Consent Decree (d/e 17). Dominion Energy, Inc. later filed a Motion for Sanctions (d/e 38). After considering the arguments of the parties and the City of Fall River, the Court DENIES all of these pending motions.

I. BACKGROUND

A. The Consent Decree Signed by the United States and Dominion Resolved Civil Claims Against Power Plants in Illinois, Indiana, and Massachusetts.

One section of a 96-page Consent Decree negotiated and signed by Plaintiff United States ("United States") and Dominion Energy, Inc. ("Dominion"), [1] Dominion Brayton Point, LLC, and Kincaid Generation, LLC that this Court entered on July 18, 2013 has incited a vigorous dispute that led to the four currently pending motions. Under the Consent Decree, Dominion agreed to spend $9.75 million to implement environmental mitigation projects in specific locations affected by Defendants' power plants in Kincaid, Illinois; Hammond, Indiana; and Brayton Point, Massachusetts. Consent Decree, d/e 3, § IX, ¶ 109. These projects included the "Northeast Clean Energy and Clean Diesel Projects" (the "Northeast Projects"). Id., App. A., § XI.

For the Northeast Projects, Dominion was required to "consult[ ]" with the Town of Somerset, Massachusetts, where Dominion's Brayton Point power plant was located, and the City of Fall River, Massachusetts, which lies within 2.5 kilometers of the Brayton Point plant, about proposing projects. Id . ¶ A; Fall River Memorandum, d/e 26 at 3. Dominion was then required to submit "one or more" project proposals to the U.S. Environmental Protection Agency ("EPA") for approval to implement specified types of projects in "either or both municipalities." Id . The Consent Decree also stated that although the "Parties' expectation" was that half of the maximum $1.6 million allotted for the Northeast Projects "will be spent in Somerset... the final distribution will depend on the Projects (and their costs) that can be proposed and implemented within the time frames and other requirements set out in this Appendix." Id . ¶ B. The Consent Decree also required Dominion to submit all of the project proposals-not only the Northeast Projects proposals-to the EPA for approval within 120 days of the Court entering the Consent Decree. Id . § II, ¶ A.

B. The Complaint Filed by the United States Alleged Violations of the Clean Air Act at the Kincaid Power Station in Illinois.

On April 2, 2013, the United States brought a civil enforcement action against Dominion and its subsidy Kincaid Generation, LLC, alleging that Dominion made unpermitted modifications to the Kincaid Power Station, in violation of the Prevention of Significant Deterioration provisions of the Clean Air Act ("CAA"), Title V of the CAA, and the State Implementation Plan ("SIP") adopted by Illinois and approved by the EPA. See Complaint, d/e 1. These provisions all seek to reduce the emission of pollutants such as nitrogen oxides, sulfur dioxide, and particulate matter harmful to human health and the environment. See Government's Response, d/e 32-1 at 2. The United States joined Dominion Energy Brayton Point, LLC, which operated the Brayton Point Power Station in Somerset, Massachusetts, as a necessary party under Federal Rule of Civil Procedure 19(a). See Complaint, d/e 1 ¶ 1.

The scope of the Consent Decree was much broader than the United States' Complaint here. While the Complaint alleged only "modification" violations at the Kincaid Plant in Illinois, the Consent Decree resolved all civil claims of the United States against Dominion for unpermitted modifications made at the Kincaid, Brayton Point, and State Line power plants. Compare id. ¶¶ 37-45 with Consent Decree, d/e 3 ¶ 121. The Consent Decree also resolved all past claims by the United States arising from "opacity" violations at the State Line Station in Hammond, Indiana. Consent Decree, d/e 1 ¶ 121. Notably, before the Court entered the Consent Decree on July 18, 2013, the United States clarified that the Consent Decree did not resolve alleged violations of opacity standards at the Brayton Point power plant in Somerset, Massachusetts. The United States made this clarification in response to a question from a group of environmental organizations that sued Dominion Energy Brayton Point, LLC for opacity violations under the CAA and the Massachusetts SIP. See U.S. Memorandum, d/e 7-1 at 19-20. During the public-comment period before the Consent Decree was entered, this group of organizations (consisting of the Conservation Law Foundation, Clean Water Action, Toxics Action Center, and the Coalition for Clean Air South Coast) (the "Massachusetts Plaintiffs") inquired how the Consent Decree would affect their pending lawsuit. Id. at 19. In response, the United States explained that although the Consent Decree resolves opacity claims at the State Line plant in Indiana, the "express terms of the Consent Decree... do not purport to resolve any opacity violations at Brayton Point." Id. at 20.

C. The Consent Decree Named Fall River as One of Two Municipalities That Could Benefit from the Environmental Mitigation Projects.

On July 11, 2013, less than two weeks after the United States moved to enter the Consent Decree and one week before the Court actually entered the Consent Decree on July 18, 2013, representatives from Dominion Energy met with the employees of Fall River who were to be involved in preparing proposals for the Northeast Projects. See Aff. of Kenneth Pacheco, d/e 14-2 ¶ 3. At this meeting, Dominion gave Fall River "Proposal Guidelines" requiring Fall River and Somerset to submit proposals to Dominion by August 1, 2013. See Aff. of James Smith, 29-3 ¶ 5. The Proposal Guidelines also stated that Dominion's deadline to submit proposals to the EPA was 120 days after the Court entered the Consent Decree. Proposal Guidelines, d/e 30-1 at 9. The Proposal Guidelines were dated June 24, 2013, and stated in a footnote that "the United States soon will move to enter the Consent Decree, which will then take effect when the Court enters it." Id . The subsequent entry of the Court's Consent Decree on July 18, 2013 set Dominion's 120-day deadline to November 14, 2013. See Fall River Memorandum, d/e 26 at 7. Fall River contends Dominion never told Fall River that the Court had entered the Consent Decree triggering the 120-day deadline. Id.

Somerset submitted a proposal to Dominion Energy on August 1, 2013, the date of the deadline. See Dominion Memorandum, Att. E, d/e 29-2 at 25. On December 17, 2013, Fall River officials read in a local newspaper that Somerset was expected to receive the full $1.6 million of funding for the Northeast Projects because Fall River had failed to submit a proposal. Aff. of Christie DiOrio, d/e 14-1 ¶ 12. The next day, Fall River submitted a proposal, exceeding Dominion's deadline to submit proposals to the EPA by more than one month. See Aff. of Kevin Hennessy, d/e 29-2 ¶ 23. Dominion told Fall River that Dominion had to refuse Fall River's proposal because Dominion had already submitted the selected plans to the EPA and could not extend the 120-day deadline imposed in the Consent Decree. See Fall River Memorandum, d/e 16-5 at 2.

Fall River responded by filing a Motion for a Temporary Restraining Order and/or Preliminary Injunction, a Motion to Intervene, and a Motion to Enforce and/or Modify the Consent Decree in this Court on January 14, 2014. Pursuant to Federal Rule of Civil Procedure 24(c), Fall River attached a proposed complaint to the Motion to Intervene, alleging claims against Dominion's Brayton Point plant identical to those in the complaint filed by the Massachusetts Plaintiffs in their Massachusetts lawsuit: opacity and smoke emission violations of the Massachusetts SIP, violations of monitoring requirements of the Massachusetts SIP, and violations of acid rain monitoring requirements. Compare Fall River Proposed Complaint in Intervention, d/e 31-1 with Complaint, d/e 1 in Conservation Law Foundation, Inc., Clean Water Action, and Toxics Action Center v. Dominion Energy Brayton Point, LLC, No. 13-10346 (D. Mass. filed Feb. 22, 2013).

On January 15, 2014, at a telephone hearing on the Motion for a Preliminary Injunction, the United States agreed not to conduct further review of the plans Dominion had submitted for the Northeast Projects until the Court resolved Fall River's Motion to Intervene. See Minute Entry dated Jan. 15, 2014 and Joint Stipulation, d/e 22. The Court also set a briefing schedule at the hearing that allowed Fall River to revise any of its motions and reply to the responses to Fall River's motions. See Order, d/e 19. Dominion Energy later filed a Motion for Sanctions against Fall River (d/e 38). On April 7, 2014, despite some technical difficulties, the Court held an interstate video hearing on Fall River's Motion to Intervene.

Dominion and Fall River argue at length about why Fall River's proposal was tardy. In short, Fall River blames Dominion for failing to tell Fall River when the Court entered the Consent Decree triggering Dominion's 120-day deadline. Dominion blames Fall River for not submitting a timely proposal. While this factual disagreement may bear on the balancing test the Court conducts when considering a Motion for a Temporary Restraining Order and/or Preliminary Injunction, the disagreement is irrelevant to the Motion to Intervene. Further, the Court's DENIAL of the Motion to Intervene moots the Motion for a Preliminary Injunction and the need to resolve who was at fault for Fall River's untimely submission.

II. ANALYSIS

1. Fall River Seeks to Intervene under Federal Rule of Civil Procedure 24.

Federal Rule of Civil Procedure 24 provides three avenues proposed plaintiff-intervenors may take to intervene in a federal case. Because the citizen-suit provision of the CAA blocks Fall River from taking any of these routes to intervention, the Court DENIES the Motion to Intervene.

A. Fall River Cannot Intervene Under Fed.R.Civ.P. 24(a) Because The Clean Air Act Does Not Provide Fall River with an ...


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